IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND
HELD AT MBABANE APPEAL CASE NO. 04/2010
In the matter between:
SATELLITE INVESTMENTS (PTY) TLD Appellant
JOSEPH DLAMINI 1st Respondent
JIMSON SIMELANE 2nd Respondent
PHINEUS DLAMINI 3rd Respondent
CORAM: RAMODIBEDI J.P.
Mr. Attorney N.D. Jele for the Appellant
Mr. Attorney S.P. Mamba for the Respondents
Date heard: 11 March, 2011
Date of judgment: 23 March, 2011
J U D G M E N T
LABOUR LAW: Discrimination – whether payment of disparate wages per se amounts to discrimination; whether itemized acts of discrimination in Constitution and Employment Act are exhaustive. PRACTICE: Dispute of fact – when it arises. Party not allowed to make its case in written or oral submissions but in the affidavits. Court’s refusal to entertain new grounds of appeal in respect of which no leave was sought by appellant.
 The terminus ad quem of this judgment is to decide whether the payment of different wages to employees who perform substantially the same type of employment amounts to discrimination and is as such worthy of being the subject of an interdict by the Industrial Court.
 The facts giving rise to the question for determination, are fairly straightforward and they acuminate to this: The appellant, which was the respondent in the previous proceedings before the Court a quo, is a company duly incorporated in accordance with the company laws of this Kingdom, having its principal place of business at Big Bend, Lubombo Region.
 The appellant, it is common cause, was formed in the following circumstances: The Illovo Sugar Group of Companies, in the year 2005, took a decision to outsource the security services wing to an independent outfit, thus retrenching the security guards who were previously in its employ. In view of the opportunity presented thereby, security guards who had previously been in Illovo’s employ, formed the appellant company and these guards included the above-named respondents, who were the applicants in the previous proceedings before the Industrial Court.
 The appellant presently has a number of guards in its employ and they, in terms of a contract of service entered into with Illovo, provide security services at the Ubombo Sugar Limited. The appellant, in spreading its wings, also secured security service contracts with Sisekelo High School and the Ubombo Block Yard, both of which are also situate in Big Bend. The guards who are stationed at Ubombo Sugar Mill are remunerated at E8.55 per hour, whereas those in the two other stations are remunerated at E4.59 per hour. This obviously results in disparate pay at the end of the month, with those stationed at Ubombo Mill earning higher than those stationed at the two other posts.
 Aggrieved by this obvious disparity, the respondents approached the Industrial Court, hereinafter referred to as such or as the Court a quo, seeking the following relief via application proceedings:
- Interdicting and restraining the Respondent from discriminating Applicants against fellow security guards who are employed at the same designation and doing the same job.
- Directing the Respondent to pay to the Applicant (sic) the sum equivalent (sic) an hourly rate of E8.55 or E3,809.53 per month being the remuneration currently received by the fellow Security Guards.
- Directing that Respondent (sic) to pay to the Applicants such amounts as calculated from December, 2005, to date.
 This application was opposed by the appellant. The bases for opposition need not be traversed at the present moment, save to point out that the Industrial Court found for the respondents herein and in a short judgment delivered on 17 August, 2010, granted the respondents the relief they sought (as recorded above), with costs. I must as of necessity add that this judgment was concurred in by the Assessors who sat with the presiding Judge a quo.
 The appellant, being dissatisfied with the said judgment, has approached this Court on appeal. Its grounds of appeal, in compressed form are that the Court a quo erred in:
- holding that an employer may not have differential wages in respect of same categories of employees but working in different stations;
- holding that differential in wages constitutes discrimination in accordance with section 29 of the Employment Act of 1980;
- holding as a matter of law that the work carried out by the Applicants was identical to that carried out in other similar job functions;
- that sufficient evidence to grant the orders sought on notice of motion was placed before it in that the Court ought to have found that there was a dispute of fact rendering motion proceedings incompetent; and
- holding that an employer cannot assign appropriate remuneration based on risk, exposure, skill required, physical and mental effort, and the size of the operation.
Ground of Appeal 1
 In relation to the first ground of appeal, namely, that the Court erred in holding that an employer may not have differential wages in respect of same categories of employees working in different stations, I find great difficulty. The difficulty arises from that fact that nowhere in the judgment did the Court a quo make such a gratuitous statement. This is despite reading the judgment in question numerous times.
 It would appear to me that the Courta quo in its judgment, dealt with the facts then before it and did not make any general findings in relation to other facts, cases and circumstances, to the effect that an employer may not pay differential wages to employees working in different stations. The findings of the Court, it would appear to me, were based on the salient facts before it (an issue I shall address shortly) and the argument made by the respective parties thereto anent. To sustain this ground of appeal would in my considered opinion, constitute an unfair criticism of the Court a quo which has no foundation regard being had to the text of the judgment sought to be impugned. This ground of appeal must, in my considered view fail.
Ground of Appeal 2
 In this respect, the appellant argues that the Court a quo erred in holding that differential in wages constitutes discrimination in terms of section 29 of the Employment Act, 1980. A reading of the judgment of the Court a quo suggests to me that there is force to this criticism. I, however, say so without necessarily holding that the Court was wrong in its conclusion on discrimination on matrix of the facts of the matter before it, particularly in view of the concession made by Mr. Jele and to which I shall advert in the course of this judgment.
 In this regard, it would appear to me that the Court employed the word “discrimination” too readily in describing any disparity, in the instant case, in relation to wages. That this is the case in my view, is to be seen in paragraph  of the Court a quo’s judgment, where the learned Judge, after noting the common cause fact of the disparity in wages between the aforesaid groups of security guards said, “It is this discrimination that has prompted the applicants to institute the present legal proceedings on Notice of Motion and are seeking an order in the following terms. . .” (Emphasis added).
 In Transport & General Workers Union & Another v Bayete Holdings (1999) 20 ILJ 1117 (LC) Grogan A.J. stated the following at page 1119, in respect of discrimination:
“However, the mere fact that an employer pays one employee more than another does not in itself amount to discrimination: see Du Toit et al The Labour Relations Act of 1995 (2ed) at 436. Discrimination takes place when two similarly circumstanced individuals are treated differently. Pay differentials are justified by the fact that employees have different levels of responsibility, expertise, skills, and the like.”
It would appear therefore that in appropriate cases, an employer may pay different wages to the same type of employees who do the same type of work, provided there are certain justifiable variables that inform the disparity, such as expertise, skill, and experience e.t.c.
 To buttress this point, Black’s Law Dictionary describes discrimination as, “Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured”. It would appear to me therefore that a mere disparity in treatment of similarly circumstanced persons is not per se discrimination. It assumes the tenor of discrimination if it is accepted that there is disparate treatment but which crucially has no acceptable justification or underlying acceptable cause or reason. (Emphasis added).
 In other words, and in my respectful view, the disparate treatment is normally neutral. It assumes an unpalatable sense of discrimination in circumstances where the differential treatment offered is either contrary to constitutional and/ or statutory prohibitions or is arbitrary and cannot be justified by an objectively acceptable criterion. This would mean in other words that it is not really a factual conclusion as to whether discrimination exists from the fact of disparate treatment but rather it is a conclusion of law upon an analysis of the facts and a positive finding that no justification exists for the disparate treatment accorded the complainants vis-a -vis their similarly circumstanced contemporaries.
 In Louw v Golden Arrow Services (Pty) Ltd (2002) 21 ILJ 188 (LC), Landman J stated the following in this regard:
“In other words, it is not an unfair labour practice to pay different wages for equal work, or for equal value. It is however an unfair labour practice to pay different wages for equal work or equal value if the reason or motive, being the cause for so doing, is direct or indirect discrimination on arbitrary grounds or the listed grounds, e.g. race or ethnic origin. . . Discrimination on a particular ‘ground’ means that the ground is the reason for the disparate treatment of people of, for example, different races is not discrimination on the ground of race unless the difference in race is the reason for the disparate treatment. Put differently, for the applicant to prove that the difference in salaries constitutes discrimination, he must prove that his salary is less than Mr. Beneke’s salary because of his race.”
 In the instant case, Mr. Jele conceded that there was discrimination in the instant case but sought to argue that it was justified. In the heads of argument, the appellants sought to make reference to the justifications for the disparate treatment, alleging issues of experience; sensitivity of the work at Ubombo Sugar Limited; juxtaposed with the other duty stations; skill; and qualifications e.t.c.
 The difficulty that the appellants find themselves is that they attempt to justify the disparate treatment in their heads of argument when the grounds upon which they seek to justify the disparate treatment was not included in their answering affidavits. An applicant, it is common cause, should stand or fall on the founding affidavit. So, in my view, should a respondent. It would be improper to allow a party to make out a case it did not make out in its answering affidavit by permitting it to do so in its written or oral submissions.
 Facts which in the employer’s position justify disparate treatment, should be squarely and sufficiently addressed in the answering affidavit, allowing the other party an opportunity to counter same. To allow such facts to be made well after the close of pleadings and with no application having been made and granted for the filing of supplementary affidavits to address the same, but in an embellishing address in written or oral submissions would pervert the course of justice and would be a cradle of injustice of the highest order. To allow the appellant to follow this course would be to allow evidence to be allowed through the backdoor, disguised as submissions a course that this Court should resolutely set its face against.
 In fairness to him, Mr. Jele admitted that the appellant’s case in the Court a quo was badly pleaded. In this regard, he was eminently correct. In this instance, the appellant has itself to blame for the precarious position in which it now finds itself. In the answering affidavit and in answer to the allegations of discrimination, all that the appellant alleged was that it received more payment from Ubombo Sugar than the other posts and that it would not be economically viable and sound for the appellant to pay more than it actually receives as revenue in respect of the respondents. The Court a quo was eminently correct in rejecting that argument as being well outside the respondents’ control and that it was an administrative matter.
 Before I draw the curtain on this ground of appeal, there is one matter of grave importance that has been raised by the appellants. It is the argument that the only bases for discrimination, and which the Courts are by law to discountenance, are to be found exclusively in section 20 of the Constitution of Swaziland and the provisions of section 29 of the Employment Act, of 1980.
 Section 20 of the Constitution deals with equality before the law. In relation to discrimination, it states that no person shall be discriminated against on the ground of gender, race, colour, ethnic origin, tribe, birth, creed or religion or social or economic standing, political opinion, age or disability. The word “discriminate” is defined as giving different treatment to different persons attributable only or mainly to their respective descriptions by gender, race, colour, ethnic origin, tribe, creed, birth or religion, or social or economic standing, political opinion, age or disability.
 Similar considerations appear to be included in the Employment Act, (op cit) in section 29 aforesaid. That section provides:
“No employer shall in any contract of employment between himself and an employee discriminate against any person or between employees on grounds of race, colour, religion, marital status, sex, national origin, tribal or clan extraction, political or social status”.
 The question for determination is whether, as the appellants contend, it is correct that if the discrimination alleged does not fall within the ambit of any of the special categories mentioned in either section, then the complainant ought to fail in his complaint? In other words, the appellants claim that for a person to successfully prove that he or she has been discriminated against, the alleged act of discrimination must necessarily fall within one or more of the categories mentioned in the Constitution and the Act above, failing which any other conduct cannot in law be properly regarded as discrimination. Is that contention supportable?
 In the first place, what one must point out is that there is no provision in both the Constitution and the Act that the items of possible discrimination mentioned in either section constitute the numerus clausus of all types of discrimination known to and to be proscribed to in this country, such that any other type or species would not be regarded as such, not because it is not, objectively viewed an act of discrimination, but for the reason that it has not been included by the Legislature in the prohibited category.
 In my view, the contention by the appellants is not supportable. First, no authority was cited in support thereof. Secondly, society throws up a vagary of new and unprecedented situations that the Legislature, in all its manifold wisdom would not have anticipated. The question then is, if there is a type of discrimination, which is obviously untenable and totally insupportable, should the Courts, when approached by a litigant to distrain such conduct, turn a blind eye thereon for no other reason than that it is not specifically proscribed in either section? My answer is an emphatic No!
 If that were to be so, it would mean that the Courts would thereby fail to protect victims of overt discrimination and the Courts’ hands would be withered and be unable to move in order to give needed protection for no other reason than that the Legislature, many years ago, in 1980, for argument’s sake, never anticipated the type of discrimination alleged by a complainant before Court. This would amount to the Courts failing to perform their duties.
 An example would in this regard do. There is nowadays the HIV-Aids pandemic. It was relatively unknown and hence not prevalent when the Employment Act was promulgated in 1980. There have been cases in other countries where the Courts have come out strongly and condemned discrimination based on a person’s HIV status in the work place. See for instance the Botswana case of Lemo v Northern Air Maintenance (Pty) Ltd  2 B.L.R. 317 (I.C.), where Dr. Dingake J. held that discrimination by an employer, based on one’s HIV status was out of order. Can we bravely proclaim that such blatant discrimination ought to be countenanced, debilitating as it might be, and for no other reason than that Parliament never imagined it would exist many years later? Again, my answer is a resounding No!
 It is a fact of life that Parliament, with all its good intentions and reasonable foresight, is never able to keep pace with new vagaries of situations our society throws up. Furthermore, it is common cause that its wheels procedures and processes are in some cases exceedingly slow as not to be able to keep pace with the rate at which societies throw unwanted and unprecedented situations which require immediate and decisive intervention. To count only on the Legislature in all these areas, while real and corrosive harm is being perpetrated on persons in the society, would be an exercise in abdication by the Courts.
 To buttress the point, regarding the proper approach to legislation, Agim J.C.A. in the Gambian case of Edward Graham v Lucy Mensah 2002 – 2008 G.L.R. volume 1 page 22 at 44, quoted with approval the following judgment in support of the proper approach to construction of legislation. In Seaford CourtEstates (Ltd) v Asher (1949) 2 KB 481 at 498 – 499, the legendary Lord Denning said:
“Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold set of facts which may arise, and, even if it were, it is not possible to provide for them in terms free of ambiguity … A judge… must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature.” See also Nothmen v Barret London Borough Council (1978) 1 W.L.R. 220 at 228, per Lord Denning.
I accordingly have no hesitation in stating that this argument has no merit and it is hereby dismissed.
 In the Botswana Industrial Court, Dingake J. came to a similar conclusion as I have on this very question in Diau v Botswana Building Society  2 B.L.R 409. In dealing with substantially similar worded provisions of the Botswana Constitution on equality before the law, the learned Judge said at 432 G:
“In my mind the grounds listed in terms of s 15 (3) are not exhaustive. A closer interrogation of the said grounds show one common feature – they outlaw discrimination on grounds that are offensive to human dignity and or on grounds that are irrational. To dismiss a person because of perceived HIV status would offend against human dignity, in addition to being irrational.”
I am in full agreement with His Lordship’s analysis of the provisions and his conclusions, which, as I have said, coincide with my very own.
Ground of Appeal 3
 In this connection, it was submitted that the Court a quo erred in holding as a matter of fact that the work carried on by the respondents was identical to that carried out in other job functions. I must mention, in relation to this ground of appeal that the concession made by Mr. Jele that there was discrimination in the instant case makes it unnecessary to consider this ground of appeal in any detail.
 In particular, there was no information placed before the Court by the appellant in its affidavit that served to show that there was, as a matter of fact, any major differences in the work carried out by the two sets of security guards. In the premises, the Court a quo was justified in coming to the conclusion, which would on the facts then before it appear to have been inexorable, that the work the guards performed was identical.
 Only the major differences or the justifications properly raised in the appellant’s papers for the disparate treatment would, in my view, have constituted sufficient bases for the Court to have held otherwise. Once again, the appellant’s failure to plead relevant issues with sufficient particularity and detail and those which would have served to clearly demarcate the differences and the justifications for the differential treatment, return to haunt it.
 In this regard, the respondents alleged in their originating papers that they are employed in the same designation and performing the same job, thereby rendering it unfair for the appellant to make disparate payments to them. In the answering affidavit, the appellant did not dispute that the said guards were performing the same type of work but were being remunerated differently. There was therefore no basis on the papers before it, in my considered opinion, upon which the Court a quo would have held any differently in the circumstances. The quality of the pleadings once again returns to haunt the appellants and they cannot, in the circumstances apportion the blame to anyone else. This ground of appeal is in my view also liable to fail.
Ground of Appeal 4
 In this ground of appeal, the appellant claimed that there was, in the matter, a dispute of fact which rendered the matter incapable of resolution on motion proceedings. It is therefor contended that the Court a quo erred in dealing with the matter on motion.
 It is a matter of note that the appellants’ heads of argument are silent on the reasons why it is claimed there were disputes of fact. There is consequently no list of the matters that allegedly constitute disputes of fact. It therefore becomes difficult for this Court to fully deal with the issue under scrutiny as it was incumbent upon the appellant to make appropriate written submissions thereon.
 A reading of the answering affidavit, in my view shows indubitably that most of the contentious issues were not denied by the appellants. For starters, the appellant did not deny that there was disparate pay given to the security guards. All that they did was to try and explain the reasons for the disparity. They did not, for argument’s sake, raise issues regarding any differences that may have existed in the manner of the work performed, the times and experience, which could conceivably have raised a bona fide dispute of fact.
 The main thrust of the appellant’s case it would appear from the affidavit, was that the discrimination alleged did not fall within the purview of the International Labour Conventions, the Constitution of Swaziland and the Employment Act and this is not, by any stretch of imagination, a dispute of fact that rendered the matter unfit to be decided in that forum on the papers filed.
 In the recent judgment of Hlobisile Cynthia Maseko (Nee Sukati) And Another v Sellinah Maseko (Nee Mabuza) And Four Others Case No. 3825/10, Ota J. dealt impressively and at length and with proper reference to authorities on instances in which a dispute of fact arises. The learned Judge quoted with approval the case of Soffiantini v Mould 1956 (4) S.A. 150 (E.D.L.) at 154, where Price J.P. extrapolated the applicable principles in such matters.
 The principles were stated as follows at page 10 of the cyclostyled judgment by Ota J.:-
- When the respondent disputes material allegations made by the deponent on the applicant’s behalf and produces positive evidence to the contrary – See Roomhire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) S.A. 1155 (T.P.D.);
- When the respondent admits the applicant’s affidavit evidence but alleges other facts which the applicant disputes; and
- When the respondent concedes that he has no knowledge of the main facts stated by the applicant but denies them, putting the applicant to proof and himself gives or proposes to give evidence to show that the applicant and his deponents are biased and untruthful or otherwise unreliable and that certain facts upon which the applicant relies to prove the matter are untrue.
 A close reading of the appellant’s answering affidavit in my considered opinion, clearly shows that the denials, where recorded, did not have the effect recorded under one or more of the above scenarios. For that reason, the Court a quo was in my considered opinion, perfectly entitled, in the circumstances, to deal with the matter on motion. Its decision to do so cannot be faulted.
 It is, in any event, also worth remembering the wise injunctions that fell from the lips of Price J.P. in the Soffiatini case (supra) where the following is recorded at page 154, para F-H:
“If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petition by such a device. It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over- fastidious approach to a dispute raised in affidavit.”
 I am of the considered opinion that justice demanded that the matter be dealt with on motion as there was no foreseeable dispute, neither did one in fact arise during the course of the hearing. The dispute of fact, I must emphasise, must appear ex facie the answering affidavits and should not be made an appendage to the papers in oral argument or written submissions. The test is whether the answering affidavit raises a genuine dispute of fact at the time of its filing. A gathering of potential disputes, assembled ex post facto,in order to convince the Court that the trial Court should have found that there was a dispute of fact will not do. This ground is also liable to fail in my view.
Ground of Appeal No. 5
 In this ground, it is alleged that the Court a quo erred in holding that an employee cannot assign appropriate remuneration based on risk, exposure, skill required, physical and mental effort, and the size of the operation. This is an issue that I have adequately dealt with in this judgment when I dealt with ground 2. I need to mention though that the Court a quo did not hold that issues of expertise, skill, exposure e.t.c. may not be considered in awarding disparate remuneration.
 The Court dealt with the issues in the current case without making any holding in the line attributed to it by the appellants herein. Furthermore, as indicated earlier in the judgment, the appellants failed to plead the factors that justified the disparate payment structure in their papers and the Court did not have to deal with such factors as pleaded. I need not say more on this ground. It is liable to fail.
Further Grounds of Appeal
 There are other grounds that were raised by the appellants in the heads of argument but which do not form part of the notice of appeal. These include the issue of the dispute allegedly being time-barred and the nature of the dispute, allegedly being one in respect of interest and not right, therefore falling outside the Court a quo’s jurisdiction. There is also the question of costs which the appellants claim were wrongly awarded to the respondents by the Court a quo.
 The relevant provision in this regard is Rule 7 of the Industrial Court of Appeal Rules, 1997. It is headed “Appellant confined to the grounds of appeal”, and provides the following:
“The appellant shall not, without the leave of the Industrial Court of Appeal, urge or be heard in support of any ground not stated in his notice of appeal, but the Industrial Court of Appeal in deciding the appeal shall not be confined to the grounds so stated.”
 The import of the foregoing Rule is that where an appellant who has noted an appeal, or, I may add, a respondent, wishes to raise further grounds of appeal to those in the notice of appeal or cross-appeal, as the case may be, he or she shall seek leave from the Industrial Court of Appeal in order to add such new ground of appeal or cross-appeal. If such leave is not sought or if sought, is not granted, then that party shall not argue the said additional ground of appeal and shall not be heard by the Court in respect of that ground of appeal.
 On the other hand, the Industrial Court of Appeal, in reaching its decision, is not bound to the grounds of appeal raised by the parties. This means that if justice so demands, the Industrial Court of Appeal, in reaching its decision, may place reliance on legal issues not raised by any of the parties before it. It would, however, be obliged, in my view, to hear the parties on the issues on which it intends to decide the appeal. See Kauesa v Minister of Home Affairs and Others 1996 (4) SA 965 (NmSC) 1996 (4) SA page 965.
 It would therefore appear that whilst the failure to seek leave to raise an additional ground constitutes a bar to that party arguing the same, the Court is not barred from deciding on an appeal by reference to grounds not raised by the parties before it.
 In the instant case, the appellant did not seek leave to raise any of the additional grounds which it did. For that reason, this Court shall not have regard to these new grounds of appeal and this was made clear to Mr. Jele during the appeal hearing. I interpose to mention that the additional grounds of appeal, save the issue of costs, were not raised for determination before the Court a quo thus denying that Court the opportunity to squarely deal with the issues. It would be unfair to saddle this Court with such issues for the very first time without the benefit of a judgment thereon by the Court a quo.
 In the premises, I am of the view that the proper order to issue is the following:
The appeal be and is hereby dismissed with costs.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 23RD DAY OF MARCH, 2011.
T. S. MASUKU
ACTING JUSTICE OF THE INDUSTRIAL COURT OF APPEAL
M. M. RAMODIBEDI
PRESIDENT OF THE INDUSTRIAL COURT OF APPEAL
Q. M. MABUZA
ACTING JUSTICE OF THE INDUSTRIAL COURT OF APPEAL
Messrs. Robinson Bertram Attorneys for the Appellant
Messrs. S.P. Mamba Attorneys for the Respondents